Turner v. Turner

• Decision Date: 13 April 1988
• Docket Number: No. 57609,57609
• Parties: Evelyn B. TURNER v. Nancy TURNER.
• Court: Mississippi Supreme Court

Page 942

524 So.2d 942

Evelyn B. TURNER v. Nancy TURNER.

No. 57609.

Supreme Court of Mississippi.

April 13, 1988.

James E. Upshaw, Lonnie D. Bailey, Upshaw, Williams, Biggers, Page & Kruger, Greenwood, for appellant.

Kay Farese Luckett, Memphis, Tenn., for appellee.

Before DAN M. LEE, P.J., and ANDERSON and GRIFFIN, JJ.

DAN M. LEE, Presiding Justice, for the Court:

On November 22, 1982, the appellant, Evelyn Turner, was driving her Toyota station wagon from Clarksdale, Mississippi, to Grenada on Highway 49 near Glendora. The appellee and plaintiff below, Nancy Turner, was a passenger sitting in the back seat. At the intersection of Highway 49 and a county road known locally as "Black Bayou Road," the Toyota driven by Evelyn Turner collided with a 1980 Chevrolet half-ton pickup truck owned by T.C. Buford and operated by Terry Mize. The appellee, Nancy Turner, was injured as result of the collision. Nancy Turner brought suit against T.C. Buford d/b/a Buford Plantation, Terry Mize and Evelyn Turner. The case was tried before a jury in the Circuit Court of the Second Judicial District of Tallahatchie County on September 9, 10 and 11, 1985. At the close of the plaintiff's case, the lower court entered a directed verdict against Terry Mize. The jury returned a verdict in favor of appellee, Nancy Turner, against all defendants, including Evelyn Turner, jointly and severally, in the sum of $200,000.

Evelyn Turner appeals the lower court verdict, assigning six errors. Buford and Mize are not parties to this appeal.

For the reasons assigned below we reverse and remand.

FACTS

On the rainy, foggy afternoon of November 22, 1982, Evelyn Turner was driving toward Grenada on Highway 49 at 40 m.p.h. As she approached the intersection of Terry Mize was driving the pickup in the course of his employment with T.C. Buford d/b/a Buford Plantations. He testified that he pulled up to the stop sign on Black Bayou Road, eased up to the line, looked both ways twice, did not see anyone coming, and pulled into the intersection. He did not see the Turner vehicle until after the impact; therefore, he did not know how fast the Turner vehicle was coming or if the vehicle's lights were on. He admitted that he should have seen the Turner vehicle approaching the intersection and that if he had seen it, the collision would have been avoided. His testimony conflicted with that of Turner and Caughey as to whether or not he stopped at the stop sign--both Turner and Caughey claimed he did not stop.

Highway 49 and a local road known as Black Bayou Road, she noticed the pickup truck driven by Terry Mize approach the intersection on Black Bayou Road. As she neared the intersection, she realized Mize was not going to stop at the stop sign. She threw on her brakes, but was unable to avoid the collision. Turner's car hit the truck above the back left wheel. The impact spun the truck around in the opposite direction and dragged Turner's car across the midsection of the highway. At trial Turner testified that because she had the right-of-way, she assumed Mize would stop; therefore, she did not slow down or blow her horn as she approached the intersection. Turner's testimony was corroborated by Mamie Caughey, a front-seat passenger in Turner's car.

Nancy Turner testified that she was riding in the right side back seat of Evelyn Turner's car headed toward Grenada on November 22, 1982. She was not paying attention to anything, but remembers thinking, "at this rate of speed we will never get to Grenada." She felt the car slow down abruptly, heard her mother-in-law say, "my God, he's not going to stop," and looked up in time to see the car hit the truck. After the impact, the car was over the center line. Her shoulder was numb initially; then, agonizing pain set in.

Nancy Turner suffered a three-part fracture of her right shoulder which required three surgical procedures, one to pin the fracture, one to remove the pins and one to remove a subsequently formed bony block. Nancy has sustained permanent loss of motion of her right arm and onset of post-traumatic arthritis which will require further surgery for shoulder fusion or a shoulder replacement. She currently suffers a great deal of pain and has nearly developed a frozen shoulder which amounts to a 20-50% disability to the upper extremities and about a 12% whole body disability. Her injuries will require some kind of treatment for the rest of her life and she will soon not be able to function at her job as a food stamp eligibility worker because it has become increasingly difficult for her to write (she is right-handed). The job requires her to fill out lengthy forms by hand. Her present damages were stipulated by both parties as follows:

Medical bills, $22,174.18; physical therapy, $2,228.00; medication, $53.20; lost wages $12,369.88.

Nancy Turner also offered the testimony of an economist as an expert witness, who testified as to the future earning capacity of one Nancy Turner's age, based on what she was earning at the time of the accident. At 50% disability she would be expected to earn $166,721 over the remainder of her working life.

At the close of her case, Nancy Turner moved for a directed verdict as to Mize and Buford, which was granted. Evelyn Turner moved for a directed verdict in her favor, but the motion was denied. Evelyn Turner did not call any witnesses in her defense, but Mize testified again in his own defense as to the issue of his and Evelyn Turner's joint negligence. While Mize admitted his negligence in not seeing a car in the intersection which he should have seen, he testified that if Evelyn Turner had slowed down and stayed on her side of the road, the accident would not have happened.

The two issues before the jury, then, were (1) Evelyn Turner's negligence in this collision, and (2) the amount of damages to

award plaintiff, Nancy Turner. The damage award returned by the jury is not an issue on this appeal.

DISCUSSION

I.

The Lower Court Erred in Overruling Appellant's Motion for Directed Verdict at the Close of Plaintiff's Case.

II.

The Lower Court Erred in Denying the Appellant's Request for Peremptory Instruction at the Close of All the Evidence.

III.

The Lower Court Erred in Overruling the Defendant's Motion Notwithstanding the Verdict Because the Verdict of the Jury was Contrary to Law and Against the Overwhelming Weight of the Evidence.

In her first three assignments of error, Evelyn Turner argues that the jury verdict as to her negligence was contrary to law and unsupported by the evidence. At the close of the plaintiff's case, Evelyn Turner moved for a directed verdict in her favor. The lower court denied her motion. Likewise, the lower court denied her peremptory instruction, and submitted the issue of her negligence to the jury. The lower court carefully considered her motion for j.n.o.v. and heard extensive oral argument; however, while recognizing that the issue of her negligence was a close question, the trial judge let the verdict stand.

This Court has often stated the requirements that a trial court must follow in passing a motion for directed verdict, peremptory instruction and j.n.o.v. As to a motion for directed verdict, this Court stated in Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652, 655 (Miss.1975), that the trial court "must look only to the testimony adduced for the plaintiff and accord truthfulness to it and indulge all favorable inferences that could be drawn therefrom, and if either is sufficient to support a verdict, then the motion for directed verdict should be overruled." See also Gee v. Hawkins, 402 So.2d 825, 827 (Miss.1981); Blackwell v. Dairymen, Inc., 369 So.2d 511, 513 (Miss.1979); First Money, Inc. v. Frisby, 369 So.2d 746, 751 (Miss.1979). Paymaster also states the requirements for passing on a peremptory instruction or a motion for j.n.o.v., thusly: "the evidence considered on request for a peremptory instruction or a judgment n.o.v. embraces the testimony on behalf of the plaintiff as well as that of the defendant, there being no difference between that considered for a peremptory instruction and a judgment n.o.v. since the latter is entertained only to correct the court's error in refusing a requested peremptory instruction." Paymaster at 656. Accord Astleford v. Milner Enterprises, Inc., 233 So.2d 524, 526 (Miss.1970). The evidence, in passing on a request for peremptory instruction or j.n.o.v., will be viewed in the light most favorable to the party opposed to the motion, giving the benefit of all the favorable inferences that may be reasonably drawn from the evidence, and considering any uncontradicted evidence offered by the moving party. Weems v. American Security Insurance Co., 450 So.2d 431, 435 (Miss.1984); Bay Springs Forest Products, Inc. v. Wade, 435 So.2d 690, 693 (Miss.1983).

The issues at trial concerning Evelyn Turner's negligence were the speed of Turner's car, her assumption that Mize would stop, and Turner's obligation to keep a proper lookout. Turner claims that there was no evidence that she was driving at an excessive speed, no evidence that she failed to keep a proper lookout, and no evidence that her assumption that Mize would stop was unreasonable.

The evidence is undisputed that Turner was driving 40 miles an hour immediately before impact. The evidence is also undisputed that the speed limit on Highway 49 was 55 miles per hour. However, whether or not her speed was excessive under the circumstances was in dispute and created a question for the jury. As to the evidence that Turner failed to keep a proper lookout, it is undisputed that Turner saw Mize some 400 feet before impact. But the further question is, in keeping a proper lookout, did she take any evasive action once she saw Mize was not going to stop. This question was also one for the jury, since Turner claims she tried to figure out how to avoid colliding only a few seconds before impact, and Mize claims she did not slow...